Sheikh Hakim Ali, J.--Badar Munir, by filing this direct appeal has complained against the judgment dated 4.7.2002 passed by a learned Division Bench of Peshawar High Court, Peshawar (detailed judgment was delivered on 6.7.2002) by which his acquittal from the Court of learned Special Judge, Kohat was converted into conviction by suo motu exercise of jurisdiction, and he was sentenced to suffer imprisonment for life along with imposition of a fine of Rs, 1,00,000/,, or in default to pay that amount, to undergo further period of one year simple imprisonment.
2. The history of the case as laid down by the learned counsel before us and obtained from the record is that Badar Munir was a cleaner of a Truck No,. MRB-3731, while Syed Wajid Ali Shah was the driver of the aforementioned vehicle. On 24.4.1997, at about 10.00 a.m., near Kotal Check Post Kohat, the aforementioned vehicle was searched by A.N.F. Staff where from 286 Kilo-grams Charas and 92 kilo-grams opium was recovered from secret cavities of the aforementioned truck. FIR No, 7 of 1997 was registered on the aforementioned date, with Police Station ANF, Kohat. Appellant along with Syed Wajid Ali Shah was sent for to face the trial before the learned Sessions Judge/Judge, Special Court, Kohat. He was tried by the learned Sessions Judge/Judge, Special Court, Kohat under Sections 6, 7, 8 and 9 of the Control of Narcotic Substances Act, 1997, along with Syed Wajid All Shah but appellant was acquitted through judgment dated 17.03.1999, passed by aforementioned learned Sessions Judge, while Syed Wajid Ali Shah was convicted.
3. Syed Wajid Ali Shah, the truck driver filed an appeal against his conviction before the Peshawar High Court, Peshawar being Criminal Appeal No, 91 of 1999. During the pendency of that appeal, a show cause notice dated 15.5.2002 was issued to the appellant, on the basis of which ultimately Badar Munir, appellant, was convicted by learned Division Bench of the High Court and ordered to suffer sentence as indicated above. Hence, this Criminal Appeal.
4. Learned counsel appearing on behalf of appellant submits that High Court was not empowered to issue Suo Motu notice, after a period of three years from the date of acquittal of the appellant as the judgment of acquittal passed against the appellant, by learned Sessions Judge had attained finality. He further submits that the High Court had got no power/jurisdiction to pass sentence of conviction when there were two views possible upon the evidence. As per learned counsel, the view in favour of the appellant was to be adopted than that of prosecution. Show cause notice was wrongly issued. Section under which the show cause notice was issued was not entered into it, therefore, the conviction and sentence passed by High Court was invalid, illegal and without jurisdiction. None has appeared on behalf of the State/A.G. NWFP.
5. We have perused the record and examined the case minutely. Before proceeding to discuss the law point, we have found that in para 11 of the impugned judgment, it was contended by the learned counsel for the accused/appellant that case property was neither produced before the learned trial Court nor its destruction certificate was brought on record, and to our thoughtful consideration, this lapse of the prosecution was itself sufficient for the acquittal of the appellant.
We have noted with concern that this lacuna could not be treated, as held by learned High Court as an irregularity curable under the law. If crime property was not produced or its destruction in accordance with law was not, brought and proved on record, then an incriminating evidence of vital importance was missed by the prosecution from the chain of events constituting guilt, and this fact could not be lightly ignored by the High Court.
6. There is another most salient feature of the case which has attracted our attention for the acquittal of the appellant. In law, if an accused is acquitted, i such an event,. Section 17of the Criminal Procedure Code, 1898 (hereinafter referred to as the "Cr.P.0".) has conferred power upon the Provincial Government and has permitted it to direct the Public Prosecutor to file an appeal to the High Court, from an original order of acquittal passed by any Court, other than the High Court.
Sub-section (2-A) of Section 417 of the Cr.P.C. has also granted power to an aggrieved person to file such an appeal within 313 days from the order of acquittal. In other words, the Provincial Government as well as the aggrieved person are entitled to file an appeal against acquittal under Section 417 of the Cr.P.C. Question arises as to whether a High Court can convict any acquitted person by exercising presumed suo motu powers vested in it, if no appeal has been filed by the above mentioned parties? To search out such powers, we have to divert our attention to the provisions of Section 439, in conjunction with Section .423 of the Cr.P.C. which has granted to a High Court, the power of revision. To appreciate the scope and extent of the powers of revision, as conferred by the above mentioned section, Section 439 of the Cr.P.C. is copied as follows:--
439. High Court's powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section. 338, and may enhance the sentence; and, when the Judges composing the Court of Revision, are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Where the sentence dealt with under this section has been passed by Magistrate, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by Magistrate of the first class.
[(4) Nothing in this section shall be deemed to authorize a High Court:
(a) to convert a finding of acquittal into one of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under Section 439-A.]
5. Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
7. From the bare reading of sub-section (4) of Section 439 of the Cr.P.C. it is apparent in unequivocal terms that it has prohibited the High Court to convert a finding of acquittal into one of conviction. To dilate upon the intent of this sub-section (4) of Section 439 of the Cr.P.C., it is expressed that the finding of acquittal cannot be converted into conviction, although under this Section 439(1) of the Cr.P.C. a High Court. has been empowered to call for the record of any case by itself or to take an action upon any knowledge gained by it otherwise from any source, but the specific detraction of powers through sub-section (4) of Section 439 of the Cr.P.C., for the above noted subject has created prohibitory repercussions upon the suo motu powers of revision conferred upon the High Court in respect of a case of acquittal.
8. It is interesting to note that although High Court has been conferred power of an appellate Court under Section 423 of the Cr.P.C. while exercising the powers of revision under Section 439 of the Cr.P.C., clause (a) of sub-section (1) of Section 423 of the Cr.P.C. if read minutely has not awarded the power to appellate/revisional Court to convict any acquitted person by taking suo motu action.
The commencing word* of clause (a) of sub-ection (1) of Section 423 of the Cr.P.C. have provided that the order of acquittal can be reversed but in such cases, the appellate Court has to remit the case for further probe or for its retrial. In a controversy, as to whether the power granted to an appellate Court under clause (b) of sub-section (1) of Section 423 of the Cr.P.C. a High Court can reverse the finding of acquittal into that of conviction, the Federal Court in PLD 1954 Federal Court 141 (Shera and 6 others v. The Crown) while interpreting provision of Section 423(1)(b)(2) and Section 439(4) of the Cr.P.C. had taken into consideration this provision and had authoritatively by majority held that both these sections were not available to the High Court to reverse the finding of acquittal into conviction in the cloak of merely altering it. This judgment, with great respect has decided the controversy that under the provision of Section 423 of the Cr.P.C. read with Section 439 of the Cr.P.C. the revisional Court can not convert the finding of acquittal into conviction. The above view was rightly followed by High Court of Sindh in the case titled (Karl John Joseph and another Vs. The State) reported in PLD 2005 Kar. 4.
9. Accordingly we are constrained to hold that the learned Judges of the Division Bench of the Peshawar High Court, Peshawar were not empowered to exercise the suo motu power of revision, in such a manner so as to convert the judgment of acquittal into a judgment of conviction.
Resultantly, the instant appeal which is although barred by 31 days delay, yet in the interest of justice keeping in the view, the above facts and legal aspect, we condone and accept it, and we set aside the impugned judgment of the Peshawar High Court, Peshawar, and order the acquittal of the appellant forthwith, if not required in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.